Category Archives: Tort – Automobile Accident

On April 1, 2010, in a unanimous decision, People v Caban, 2010 NY Slip Op 02674, the Court of Appeals, reversed the Appellate Division, (People v Caban, 51 AD3d 455 (1st Dept 2008)) and found it proper to admit into evidence, a criminal defendant’s prior license suspension, arising from an incident with some similarities to the accident at issue, and in effect at the time of the accident at issue, to prove a charge of criminal negligence.

Criminal negligence is defined by the Penal Law § 15.05 (4):

“A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”

And it has been said that “criminal negligence, … is only another name for gross negligence when it causes death or injury to life or limb” Perkins v. New York C. R. Co., 24 N.Y. 196, 205 (N.Y. 1862.) And when the evidence plainly shows … gross negligence in reckless disregard of another’s rights, punitive damages are justified. Fittipaldi v. Legassie, 18 A.D.2d 331, 335 (N.Y. App. Div. 4th Dep’t 1963.) But it should be kept in mind that some courts have held that “even where there is gross negligence, punitive damages are awarded only in “singularly rare cases” such as cases involving an improper state of mind or malice or cases involving wrongdoing to the public,” Karen S. v. Streitferdt, 172 A.D.2d 440 (1st Dep’t 1991)

The Caban Court had this to say about the introduction of the fact of the prior suspension:

“Thus the jury in this case had to consider not only whether defendant failed to perceive ‘a substantial and unjustifiable risk’ that her careless driving would kill someone, but also whether that failure was ‘a gross deviation from the standard of care that a reasonable person would observe in the situation.’ … The license suspension was relevant to this question, because a jury could find that it proved defendant to be more negligent than the other evidence showed her to be.

A jury could find that it is unreasonable to back up quickly into a crosswalk, without checking carefully to be sure that no one is in the way; but that it is even more unreasonable to do so when the state has forbidden the driver from driving at all. A jury could find that the license suspension should, if it did not keep defendant off the road, at least have prompted her to pay more attention to safety while she was driving, and that in failing to do so she deviated grossly from what a reasonable person would have done.

While a license suspension is, as a general proposition, relevant to the issue of criminal negligence, that does not mean evidence of a suspension is admissible whenever criminal negligence is in issue. Evidence, though relevant, may be excluded where “its probative value is substantially outweighed by the danger that it will unfairly prejudice the other side or mislead the jury” (People v Scarola, 71 NY2d 769, 777 [1988]). That danger is not present here. Defendant would have a better argument for exclusion if her license had been suspended, for example, for failure to pay parking tickets. But it was not. It was suspended for conduct frighteningly similar to the conduct that caused Francesca Maytin’s death — backing unsafely into a crosswalk. If the jury inferred from the license suspension that defendant should have known that it was unsafe for her to drive, the jury was not misled.

… When the issue is criminal negligence, a prior similar act for which defendant has been punished shows more than propensity; a defendant who is repeatedly negligent in the same way may be found to be unable or unwilling to learn from her mistakes — and thus to be guilty not just of deviation, but of ‘gross deviation,’ from reasonable care. The prior conduct is thus directly relevant to the extent of defendant’s negligence in the case on trial — to her mens rea.

The trial court did not err by allowing the fact of defendant’s license suspension into evidence.”

It is interesting to note that while the Court repeatedly speaks of the suspension having been for similar conduct, the jury did not know this, as only the fact of the suspension was admitted into evidence, not the reason why.

And when the Court spoke of how the jury might have viewed the suspension, they noted that the jury could made the finding of gross deviation solely upon the basis of the suspension, i.e. “A jury could find that it is unreasonable to back up quickly into a crosswalk, without checking carefully to be sure that no one is in the way; but that it is even more unreasonable to do so when the state has forbidden the driver from driving at all.

Also when the Court spoke of a suspension that should not be introduced into evidence, they did not speak of a non-similar moving violation, but a suspension for a non-driving reason, i.e. not paying parking tickets. So an outstanding question is, would a suspension for speeding have been admitted in this improper backing up case? I think not, for the purpose of the lack of the reason for the suspension going to the jury, was to avoid the clear prejudice that would arise, if the jury knew that the defendant had committed the same improper act before.

What I think is clear, however, is that if you have a civil case, where the operator, defendant, was driving with a suspended license, suspended for a moving violation, similar to the negligent act claimed in your case, you can claim gross negligence, seek punitive damages and introduce the fact of the prior suspension.

While driving on a number of Interstates, in the past few days, so as to attend a Seder in Luray, VA (first night,) and East Northport, NY (second night,) I was reminded of a rule of law, when drivers chose to drive only a few feet behind me, while we traveled at various speed limits, the highest of which is in West Virginia, where it is 70 miles per hour. I learned of this rule early in my practice and I have always found its name intriguing.

The Assured Clear Distance Ahead Rule, which has apparently only been adopted in the First Department, provides that “[i]t is negligence as a matter of law to drive a motor vehicle at such a rate of speed that it cannot be stopped in time to avoid an obstruction discernible within the driver’s length of vision ahead of him. This rule is known generally as the ‘assured clear distance ahead’ rule * * * In application, the rule constantly changes as the motorist proceeds, and is measured at any moment by the distance between the motorist’s vehicle and the limit of his vision ahead, or by the distance between the vehicle and any intermediate discernible static or forward-moving object in the street or highway ahead constituting an obstruction in his path. Such rule requires a motorist in the exercise of due care at all times to see, or to know from having seen, that the road is clear or apparently clear and safe for travel, a sufficient distance ahead to make it apparently safe to advance at the speed employed.” (4A NY Jur, Automobiles and Other Vehicles, § 720; emphasis supplied.)” O’Farrell v. Inzeo, 74 A.D.2d 806 (1st Dept. 1980)

I suspect that the reason that it is not adopted in other departments is that it may be viewed as redundant in light of V&TL § 1129, which provides

“(a) The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway.”

I must conclude by noting that I like the language of the Assured Clear Distance Ahead Rule better than that of V&TL. § 1129. I think it shows the charm of the common law over statutory law.

Judge DeGrasse’s decision in Tselebis v Ryder Truck Rental, Inc., decided by the Appellate Division, First Department on February 18, 2010 has a number of things to remember in the areas of automobile liability, motions for summary judgment, and the Noseworthy Doctrine.

Tselebis involved a two-vehicle accident at an intersection controlled by a traffic light. Plaintiff testified that he had no recollection of the accident and the defendant driver testified that he entered the intersection against a red light, did not see plaintiff prior to the impact, and claimed brake failure for the cause of the accident.

Noseworthy Requires More Than Mere Memory Loss

“As a preliminary matter, Supreme Court correctly rejected plaintiff’s argument that his alleged memory loss entitled him to a lesser degree of proof under Noseworthy v City of New York (298 NY 76 [1948]). In the absence of medical evidence establishing the loss of memory and its causal relationship to defendants’ fault, the question of a lesser degree of proof cannot be considered (see Sawyer v Dreis & Krump Mfg. Co., 67 NY2d 328, 335 [1986]).”

Entering an Intersection While the Traffic Light is Red is Negligence

“Nevertheless, summary judgment in favor of plaintiff is warranted by the proof before the court. Melendez’s admission that he entered the intersection while the traffic light was red constituted a prima facie showing showing of liability on his part (cf. Diasparra v Smith, 253 AD2d 840 [1998]).

Brake Failure as a Defense, Requires More Than Mere Brake Failure

“The proffer of brake failure by Melendez and his employer, defendant Tom Cat Bakery, as a cause of the accident, is insufficient to raise a triable factual issue with respect to their liability. A defendant claiming brake failure must make a two-pronged showing that the accident was caused by an unanticipated problem with the vehicle’s brakes, and that he exercised reasonable care to keep them in good working order (O’Callaghan v Flitter, 112 AD2d 1030 [1985]). These defendants have failed to meet the first prong in light of Melendez’s testimony of problems he experienced with the truck’s brakes prior to the accident.”

Plaintiff’s Culpable Conduct Not a Bar to Summary Judgment

“Plaintiff is entitled to summary judgment on the issue of liability despite the fact that his own negligence might remain an open question. A plaintiff’s culpable conduct no longer stands as a bar to recovery in an action for personal injury, injury to property or wrongful death. Under CPLR 1411, such conduct merely acts to diminish the plaintiff’s recovery in proportion to the culpable conduct of the defendants. This statute, enacted in 1975, substituted the notion of comparative fault for the common-law rule that barred a plaintiff from recovering anything if he or she was responsible to any degree for the injury (Alexander, McKinney’s CPLR Practice Commentaries C1411:1). Here, plaintiff’s own negligence, if any, would have no bearing on defendant’s liability. Stated differently, it is not plaintiff’s burden to establish defendants’ negligence as the sole proximate cause of his injuries in order to make out a prima facie case of negligence (see Kush v City of Buffalo, 59 NY2d 26, 32-33 (1983]). To establish a prima facie case, a plaintiff “must generally show that the defendant’s negligence was a substantial cause of the events which produced the injury” (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980] [emphasis added]).

We note that opinions by this Court and others suggest that freedom from comparative negligence is a required component of a plaintiff’s prima facie showing on a motion for summary judgment (see e.g. Palmer v Horton, 66 AD3d 1433 [2009]; Cator v Filipe, 47 AD3d 664 [2008]; Thoma v Ronai, 189 AD2d 635 [1993], affd 82 NY2d 736 [1993]). These opinions cannot be reconciled with CPLR 1411 if the statute is to be given effect.”

The State of New York, Department of Motor Vehicles, Police Accident Report Manual, with Truck and Bus Supplement can be found here. It is broken down into parts and the Cover page and Table of Contents and the first four pages can be found here.

Vehicle and Traffic Law §1104 governs the conduct of the driver of an authorized emergency vehicle**, when involved in an emergency operation. And subsection (e) precludes the imposition of tort liability except where the conduct rises to the level of recklessness.

V&TL §1104(e) provides that: “The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others.”

In Ayers v O’Brien, decided on December 17, 2009, a unanimous Court of Appeals held that an emergency vehicle operator may not assert that statute in an action in which he is the plaintiff, to prevent the defendant from raising a comparative fault defense based upon mere negligence and assumption of the risk.

The Court, by way of a footnote, citing Aldrich v Sampier, 2 AD3d 1101, 1103 (3d Dept 2003), points out that had a viable claim been made under General Municipal Law § 205-e, the result would have been different as comparative fault is not a defense in a General Municipal Law § 205-e action.